Utah Environmental Congress v. U.S. Bureau of Land Management

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 15 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UTAH ENVIRONMENTAL
CONGRESS,
Plaintiff - Appellant,
v.
No. 04-4153
U.S. BUREAU OF LAND (D. Ct. No. 2:03-CV-911 DB)
MANAGEMENT, an agency within (D. Utah)
the U.S. Department of Interior;
KENT HOFFMAN, in his official
capacity as BLM Deputy State
Director for Lands and Minerals,
Defendants - Appellees,
and
CANYON FUEL COMPANY, L.L.C.,
Defendant - Intervenor-
Appellee.
------------------------------------
STATE OF UTAH, DIVISION OF
OIL, GAS AND MINING,
Amicus Curiae.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
(continued...)
Before TACHA, Chief Circuit Judge, HENRY, Circuit Judge, and WHITE,
District Judge. **
Plaintiff-Appellant Utah Environmental Congress (“UEC”) appeals the
District Court’s denial of a permanent injunction. In denying the injunction, the
District Court found that UEC failed to satisfy any of the four requirements
necessary for granting a permanent injunction. On appeal, UEC fails to contest
two of these four requirements. We take jurisdiction under 28 U.S.C. § 1291,
DENY all pending motions, and because the uncontested findings provide a
sufficient basis for denying the permanent injunction, AFFIRM.
I. Background
In 1999, following an extensive administrative review process, Defendant-
Intervenor-Appellee Canyon Fuel Company and Defendant-Appellee Bureau of
Land Management (“BLM”) entered into a lease permitting Canyon Fuel to
expand its coal mining operations in the Manti-La Sal National Forest. In
February 2003, Canyon Fuel sought to modify this arrangement to permit mining
*
(...continued)
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable Ronald A. White, District Judge, United States District Court
for the Eastern District of Oklahoma, sitting by designation.
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in areas not previously approved for mining. On July 31, 2003, BLM approved
the modification, thereby permitting Canyon Fuel to mine the areas referred to
during this litigation as the 3L and 4L panels.
UEC seeks to enjoin the mining of these panels. The District Court initially
granted a temporary injunction with respect to the 4L panel and denied an
injunction for the 3L panel. 1 The District Court later denied UEC’s motion for a
permanent injunction for the 4L panel and granted the Defendants’ motion to lift
the temporary injunction. UEC timely appealed.
II. Discussion
We review the denial of a permanent injunction for abuse of discretion.
See Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1198 (10th Cir. 2000).
Under this standard of review, we “accept the district court’s factual findings
unless they are clearly erroneous and review application of legal principles de
novo.” Id.To grant a permanent injunction, a district court must find that four
requirements have been satisfied: “(1) actual success on the merits; (2) irreparable
harm unless the injunction is issued; (3) the threatened injury outweighs the harm
that the injunction may cause the opposing part[ies]; and (4) the injunction, if
1
UEC did not appeal the denial of the temporary injunction for the 3L
panel, Canyon Fuel completed mining the panel, and therefore only the 4L panel
remains under consideration in this appeal.
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issued, will not adversely affect the public interest.” Fisher v. Oklahoma Health
Care Auth., 335 F.3d 1175, 1180 (10th Cir. 2003).
The District Court found that UEC failed to meet any of these
requirements. On appeal, UEC argues that the District Court erred in finding that
the first two requirements were not met. UEC, however, does not contest the
District Court’s findings with respect to the last two requirements. Because a
permanent injunction cannot be granted unless all four requirements are satisfied,
we need only consider these latter two requirements to decide this appeal.
The third requirement for granting a permanent injunction requires a court
to balance the harms that would result from denying the injunction against the
harms that would result from granting the injunction. In balancing the harms, the
District Court found that the financial losses that would occur as a result of
granting the permanent injunction outweighed the “speculative claims of
environmental harm” that would result from mining. UEC does not contest this
finding on appeal.
The fourth requirement for granting a permanent injunction requires a court
to consider whether granting the injunction would adversely affect the public
interest. The District Court found that granting the injunction would adversely
affect the public because it would prevent the mining of enough coal to provide
electricity to nearly a half million households for an entire year. UEC does not
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contest this finding on appeal.
A permanent injunction cannot be granted if any of the four requirements
has not been met. Id. Because UEC does not argue that the District Court erred
in finding that the balance of harms weighs against granting the injunction or that
the public interest would be adversely affected by the injunction, the District
Court—regardless of whether it properly assessed the merits of UEC’s position or
the possibility of irreparable harm—did not abuse its discretion in denying the
permanent injunction.
III. Conclusion
For the foregoing reasons, we AFFIRM the District Court’s denial of a
permanent injunction. We DENY Canyon Fuel’s motion to supplement the
appendix.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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04-4153, Utah Environmental Congress v. Bureau of Land Management
HENRY, J., concurring.
I concur fully in the court’s conclusion. I write separately only to note a
lingering concern in this case, which although it does not compel another
outcome, still gives me pause.
In a slightly different context, but still one involving doing the right thing,
the left hand should not know what the right hand is doing. See Matthew 6:3
(King James). Here, unfortunately, it appears the left hand may not know what
the left hand is doing. That is, I might be able to understand the BLM and the
Forest Service not communicating with each other. But what is difficult is that
the Forest Service’s actions suggest that in this matter it did not communicate
with itself.
The Forest Service, as an agency of the Department of Agriculture,
manages National Forests. In the context of mining, the Forest Service is charged
with protecting the surface estate of land owned by the people of the United
States through their government. Specifically, the Forest Service must insure that
mining "operations . . . . shall be conducted so as to minimize adverse
environmental impacts on National Forest System surface resources." 36 C.F.R. §
228.1.
In this case we have an obviously fragile ecosystem. In the opening stages
of this controversy, the Forest Service made very clear its concerns about mining
under streams; indeed, that is why stipulation 9 was made a part of the agreement.
Subsidence mining is so named because it–apparently almost always–causes
subsidence, which is a rapid sinking of the surface. Of course, where a river is
involved, such subsidence causes additional concern to downstream users, and to
the surrounding landowners. I am not qualified to analyze, nor do the parties
present detailed arguments evaluating the aftereffects of this subsidence on this
stream, which, fortunately for this purpose, appears not to involve much water.
But, at the outset, the Forest Service was very concerned with subsidence in the
stream. As their letter of May 8, 2003, states:
we have concluded that there would be a substantial risk to water
flow and the related riparian and aquatic ecosystems in the canyon
for portions of the stream channel. The value of these resources is
especially prominent considering the current drought.
BLM App. 278 (Letter from Forest Service to BLM, dated May 8, 2003).
Furthermore, the Acting Forest Supervisor
concluded that there [was] insufficient new information and there are
too many unknowns regarding the duration of effects to cause further
evaluation of the proposal and modify the original decisions
document in the ROD.
Id. at 279. However, later in the process the Forest Service seemed to admit that
it simply dropped the ball. That is, despite its earlier serious concern about
subsidence mining under a stream, the Forest Service concluded that it had not
adequately perfected its concern so it was still entitled to object:
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As documented in the ROD, it was the intent of the [Forest Service]
that consent to the coal lease was conditioned upon restriction of
mining operations under the drainage in the East Fork of Box Canyon
that would cause subsidence. . . . [T]hose terms were not clearly
carried forward in the stipulations attached to the lease that became a
contract between the United States and the lessee.
BLM App. 429 (Letter from Forest Service to BLM, dated Jul. 29, 2003). Despite
this omission, the Forest Service "share[s] the concerns of the Manti-La-Sal
National Forest that subsidence of the area could impact the stream and associated
ecosystem." Id. Given the terms of the lease, the Forest Service had to
"recognize that the BLM has the responsibility for administration of federal
leases." Id. at 429-30.
It is difficult to square the earlier concerns with the later action. But, as
the plaintiffs did not adequately present their case on appeal, and as the Forest
Service did not preserve its ability (and responsibility, it seems) to participate in
the final process, we are left with the Office of Surface Mining's conclusion that
the submitted permit revision constituted a mining plan modification within 30
C.F.R. § 746.11(a) and 746.18(d)(6) (requiring a “change in post-mining land
use” to prompt Secretarial approval). Our legal conclusion is required; the BLM
action is not arbitrary and capricious under these facts. We can only hope that the
Office of Surface Mining’s conclusion, made without the benefit of active Forest
Service consultation, turns out to be accurate.
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